Voluntary Departure

FOR FOREIGN nationals placed in removal proceedings, voluntary departure may be an ideal option for relief. Voluntary departure permits an individual, who is otherwise removable, to depart from the United States at his or her own expense instead of under an order of removal. Leaving the United States by way of voluntary departure rather than on a removal order has the primary advantage of facilitating the possibility of return to the United States.

There are two distinct forms of voluntary departure may be requested at two distinct times in the removal process. The first is voluntary departure in lieu of or prior to the completion of removal proceedings; this is often referred to as “pre-conclusion voluntary departure”. The second for of voluntary departure is referred to as “post-conclusion voluntary departure” and is available at the conclusion of removal proceedings. Both forms of voluntary departure have their distinct requirements. However, because it is discretionary, the applicant is not entitled to it merely because they meet the requirements.

Pre- conclusion voluntary departure may be granted by US Immigration and Customs Enforcement (ICE), prior to instituting removal proceedings, or by the Immigration Judge, at the beginning of removal proceedings. The requirements for pre-conclusion voluntary departure include the following: (1) he or she must make the request prior to or at the Master Calendar hearing, (2) request no additional relief, (3) concede removability, (4) waive appeal of all issues, and (5) not have been convicted of an aggravated felony or be deportable on a national security ground. Foreign nationals who are considered, arriving aliens, such as those who last entered with an advance parole document, are not eligible for this form of voluntary departure. If granted, the individual may be asked to post a bond and be given up to 120 days before they must depart.

Post-conclusion voluntary departure may be granted by the Immigration Judge at the conclusion of removal proceedings in lieu of being ordered removed. There are more detailed requirements for this form of voluntary departure compared to pre-conclusion voluntary departure. The requirements include the following: (1) the applicant has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served; (2) that the applicant is, and has been, a person of good moral character for at least five years immediately preceding the alien’s application for voluntary departure; (3) the applicant is not deportable for aggravated felony or national security related grounds and (4) that the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so. An applicant who requests this form of voluntary departure must post bond and may be given up to 60 days to depart.

There are a number of benefits to voluntary departure, making it a well sought after type of relief from removal. Leaving the United States under voluntary departure is not a removal so the foreign national is not subject to the ten year bar on re-entry after a removal (although they may still be subject to the three or ten year bar if they were unlawfully present in the United States prior to the grant of voluntary departure. Voluntary departure also allows the individual to leave on his or her own, rather than being formally “deported.”

When a person granted voluntary departure leaves the United States, he or she should keep the airline tickets or other proof of departure from the United States, including the their passport with any stamps indicating that they left the United States and entered into another country. There are significant penalties for failing to depart under a voluntary departure order. A removal order will be entered against the individual, they may be required to pay civil penalties, the voluntary departure bond will be forfeited, and the foreign national will be ineligible in the future for further grants of voluntary departure, adjustment of status, change of status, and cancellation of removal.

The above information is given for informational purposes only and should not be taken as legal advice. Please consult with an attorney to discuss the particulars of your own case. Stephen Ure can be contacted at (619) 235-5400, or email: ure@prodigy.net

This article was first published in June 2012